DERRY TOWNSHIP SCHOOL DISTRICT, PETITIONERv.COMMONWEALTH OF PENNSYLVANIA, STATE BOARD OF EDUCATION AND HARRISBURG AREA COMMUNITY COLLEGE, RESPONDENTS

Appeal from the Order of the Pennsylvania State Board of Education in case of In Re: Petition of Derry Township School District to Withdraw from Harrisburg Area Community College, dated December 13, 1980.

COUNSEL

Kent H. Patterson, Cleckner and Fearen, for petitioner.

Nancy K. Matlowski, with her Michael A. Davis, for respondent, Pennsylvania State Board of Education.

Judges Mencer, Blatt and MacPhail, sitting as a panel of three. Opinion by Judge Mencer. Judge Palladino did not participate in the decision in this case.

Author: Mencer

[ 65 Pa. Commw. Page 190]

This is an appeal by Derry Township School District (Derry) from an order of the State Board of Education (Board) denying Derry's petition for approval to withdraw as a member of a local sponsor of Harrisburg Area Community College (HACC). We affirm.

HACC was established in 1964, pursuant to the provisions of the Community College Act of 1963 (Act), Act of August 24, 1963, P.L. 1132, as amended, 24 P.S. §§ 5201-5214, upon the Board's approval of a revised application submitted on behalf of 49 school districts. Because of school district consolidations, the number of members of the local sponsor is now 22 school districts.*fn1 Derry has been a member of the local sponsor since HACC was formed in 1964.

As a member of a local sponsor, Derry is responsible for the payment of a portion of the operating expenses of HACC, in accordance with the formula established in the Act. Citing increased budgetary costs and declining enrollment in the school district, Derry filed a petition for approval to withdraw as a member of a local sponsor, in order to relieve itself of this financial obligation to HACC. The Board denied Derry's petition, and this appeal followed.

The power of the Board to deny Derry's petition is derived from Section 11 of the Act, 24 P.S. § 5211, which provides: "No school district or municipality

[ 65 Pa. Commw. Page 191]

which is a local sponsor or a part of a local sponsor may withdraw its sponsorship from a community college nor may any community college be disestablished without the approval of the State Board of Education." Derry argues that this provision constitutes an unconstitutional delegation of legislative power to the Board, by failing to provide sufficient standards to guide the Board's discretion.

The rule regarding non-delegation of legislative power is premised upon Article II, Section 1 of the Constitution of Pennsylvania, which vests the legislative power of the Commonwealth in the General Assembly. As a corollary to Article II, Section 1, the non-delegation principle requires that the basic policy choices involved in legislative power actually be made by the legislature, as constitutionally mandated. Chartiers Valley Joint Schools v. Allegheny County Board, 418 Pa. 520, 211 A.2d 487 (1965). "More specifically, the rule demands that, when the Legislature delegates policymaking discretion to administrative agencies, it must make the 'basic policy choices' ...

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